Friday, July 25, 2008

The Open Carry debate in Michigan

Barry County has had its share of 2a political battles over the years before CPL's were approved. Now things are heating up again. This is the latest one here. from the Free Press

HASTINGS -- Most of us probably don't know it, but Michigan is among the 44 states where it's legal to carry a gun in public without a permit.

To make that point, about 40 gun advocates walked out of Richie's Koffee Shop Inc. late Thursday afternoon with handguns holstered at their sides, part of a small but growing national movement to stand up for the constitutional right to bear arms. They strolled down this tidy west Michigan town's main street, barely causing a stir among passing motorists and pedestrians.

When they finished, the group -- mostly white men -- gathered around a fountain at the Barry County Courthouse and heard a red-meat, pro-Second Amendment speech by organizer Skip Coryell, 50, who wore his .40 caliber semi-automatic handgun openly for the first time and extolled the virtues of carrying a weapon.

"Look at all the people around you carrying guns and not a criminal in sight," said Coryell, a gun instructor and self-styled publisher who lives near Holland. "Quite frankly, I don't feel criminals would feel comfortable among us right now." He said educating people about their right to carry guns openly is the "next wave of the Second Amendment."

The event, tinged with local gun politics, was the latest statement from gun advocates around the country to promote and defend the open toting of handguns.


Personally, I'm not a fan of open carry. Do I think it should be illegal? No. Do I think it's smart? Depends on the circumstance. Will you see me do it in the middle of Brighton? Not going to happen. The reason I won't do it is that I don't want to draw attention to myself. I don't want to scare people, and have to deal with the police. Open carry is no longer an popular custom in this state.

I can see an originalist argument for the 2nd Amendment allowing OPEN carry (not concealed.) This is based on the old custom of the 1700's and 1800's that it was acceptable for a man to carry his firearm in public. Back then, it was also considered very unacceptable to carry concealed. Law abiding citizens then open carried, and the criminals carried concealed. Today, open carry is much more frowned upon these days, while concealed carry is much more accepted.

Now I'm not 100% sure open carry is legal. That's based on a couple of pro-2a lawyers I know who drilled a few of us against open carry. Sometimed it translates to "Brandishing" (state law) and/or "Disturbing the peace." (usually a city/township ordinance) That goes along with another saying among many gun owners - "Concealed means concealed."

Now I need to wait about a month to get my full Westlaw access back to see any case law history on this, but these are current laws.

It's a midemeanor to brandish a firearm in public. I couldn't find in the two minutes I took to look it what the definition of "brandish" is by statute (outside of being defined as brandishing) The Free Press's Chris Christoff said "defined as waving or pointing menacingly." That's the dictionary definition. I don't know if legalese is the same or not.

FEDERAL LAW defines Brandishing (during a drug offense) as
(4) For purposes of this subsection, the term ``brandish'' means,
with respect to a firearm, to display all or part of the firearm, or
otherwise make the presence of the firearm known to another person, in
order to intimidate that person, regardless of whether the firearm is
directly visible to that person.


Is open carry "Brandishing?" That depends if it is menacing or intimidating. In this Barry County case, these were activists out to make a point. Cops knew what was going on. They aren't going to arrest them. Too much paperwork, and too much of a headache. Many of them there probably wanted to be an open carry test case. My concern is that some well intentioned but uninformed pro-gun individual now going out and open carrying based on this article. If I open carried out in most parts of this state, I would not be shocked if at some point I would be stopped by the police. Someone unfamiliar with guns, gun laws, and some gun subcultures would be scared and call the cops. Even if you did nothing wrong, you may still be charged with something like brandishing or disturbing the peace, and be shelling out hundreds or thousands of dollars to lawyers trying to defend yourself in court - a headache most people want to avoid.

All in all, be very careful with this and be prepared if you want to go through with this.

4 comments:

Big Gay Al said...
This comment has been removed by the author.
Big Gay Al said...

According to Michigan Attorney General's Opinion 7101, carrying a pistol openly in a holster is not brandishing.

(sorry about the previous message, put down the wrong number. ;) )

Michael said...

This is the first I was aware of this type of movement to expand right to carry. Personally, being forced to conceal is very restrictive. I would carry more if I weren't worried of someone being conscious of my "bulge" or glimpsing an actual holstered sidearm and crying "brandishing" and oops, there goes $10K+ in the hands of an overzealous prosecutor.

Big Gay Al said...

Michael, I can tell you, from experience, hardly anyone ever notices that I'm carrying concealed. And since Michigan IS an open carry state, we don't have to worry about it becoming uncovered, like they do in Texas.

And as I stated previously, State AG's Opinion 7101, says it is not brandishing.

I did a lot of research on this subject, myself. What I discovered is, since there is no legal definition for "brandishing" in Michigan's state laws, that means they rely on the standard dictionary definition.

From the American Heritate Dictionary, (dictionary.com):

bran-dish
1. To wave or flourish (a weapon, for example) menacingly.
2. To display ostentatiously. See Synonyms at flourish.

Our own Jenny, said that to have a pistol in a holster is not brandishing, 7101 is her opinion, from when she was in office. If you don't want to open carry, don't. But I would tell you, don't worry about "flashing" someone with your gun, by accident. It won't get you thrown in jail.